Abdul Latif aged 36 years, his son Ramzan aged 20 years and his brother Ali Murad aged 30 years have been convicted by the learned Sessions Judge, Dera Ghazi Khan, vide his judgment dated 25- 5-1968, under section 304, Part II read with section 34, P. P. C. and sentenced to seven years' R. I. each, under section 324/34, P. P. C. and sentenced to one years' R. I. each and under sec tion 323/34, P. P. C. and sentenced to six months' R. I. each, for having caused the death of their co- villager Haji and for having caused injuries to Noor Muhammad, P. W. 5, brother of the deceased.
They have filed a joint appeal against their convictions and sentences.
2. The facts of the case for the prosecution, as disclosed in the statement of Noor Muhammad P. W.
5, who is an injured person and also lodged the F. I. R. are as follows :-- Noor Muhammad resided in village Rojhan. He had also land in Chak Chandka. The distance between the two places is four miles. He had joint cultivation with*his brother, Haji deceased. Latif, the appellant is married to the sister of the witness and the deceased, Afst. Anwar. The land of Latif appellant adjoins that of the P. W. and the deceased. Both the parties, however, arc tenants of Mazari Sardars, but they have separate cultivation. The place of occurrence is in village Chandka. Abdul Latif and the other accused used to reside in some huts at a distance of about 70 karams from the place of occurrence. Abdul Latif appellant gave beating to his wife one day before 1 the occurrence, which took place on 10-5-1967 at about noon time. Noor Muhammad P. W. and Haji deceased were present in their melon field in the village Chandka. The witness has also some sort of residential hut near the place of occurrence. According to him, Muhammad Latif came there armed with a dang.
The witness complained to the appellant about the beating to his sister on the previous day at which Latif abused him. There was some exchange of abuses. In the meanwhile, Ali Murad appellant armed with a stick and Ramzan appellant armed with a vahola came running to the spot. On their arrival, Ramzan inflicted a vahola blow on the hand of Noor Muhammad, Ali Murad gave him a sola blow. Haji deceased tried to intervene so as to rescue his brother, but Latif appellant inflicted a sola blow on his head as a result of which he fell down. Noor Muhammad picked up a piece of wood lying on the spot and inflicted blows to Ali Murad and Ramzan in order to ward off the attack. The occurrence was also witnessed by Qalandar Bakhsh P. W. 6, Muhammad Bakhsh son of Shahro P. W. 7 and Muhammad Bakhsh son of Dana, P. W. 8 Haji was carried to the hospital. Noor Muhammad lodged the report Exh. P. A. at the Police Station, which is at a distance of three miles from the place of occurrence, at 6-30 p. m. on the same day. During the investigation the police recovered dang P. I, dang P. 2 and vahola P. 3 from Latif, Ali Murad and Ramzan appellants, respectively. They were all blood-stained.
3. On post-mortem, the doctor found the following injury ou Haji, deceased "Ecchymosis of left upper eye lid and conjuctiva also injected.
Ecchymosis of left temporal region."
Scalp on the left side near the temporal region and all the temporal region was ccchymosed. There was clotted blood under the scalp.
There was also Fissure fracture of left temporal and parietal bones starting at the level of the Zygomatic process going up to the parietal bone on the top. There was clotted blood in the cranial cavity. The brain was pale and solid.
The injury, according to the doctor, was caused with blunt weapon and was sufficient, in the ordinary course of nature, to cause death, which was due to extra and intra-cranial haemorrh ages due to fracture of skull.
4. The doctor also examined Noor Muhammad P. W. and found the following injuries on his person : -- "(1) An incised wound l|"x x 1/10" on the back of the Muhammad left fore-arm 1]" above the ulnar tubercle. Afzat Zttllah, J
(2) A contused wound J" x 2/10" on the left side of skull (temporal region) two inches above the left pinna of ear."
Both the injuries were simple. Injury No. 1 was caused by sharp-edged weapon while injury No. 2 was caused with a blunt weapon.
Ali Murad and Muhammad Ramzan appellant were also injured. One contused wound 1/10"x 1/10" was found on the top of the skull of Ali Murad, which was simple and caused with a blunt weapon.
Similarly there was a contused wound 1" x 2/10" x 1" on the top of the skull of Muhammad Ramzan. It was also a simple injury and was caused with a blunt weapon.
5. At the trial all the eye-witnesses supported the prosecution version except for certain admissions made by Qalandar Bakhsh P. W, 6 and Muhammad Bakhsh, P. W. 7 in their cross-exami nation.
Abdul Latif appellant when examined, stated as follow :-- UQ.~Why this case against you ?
A.--At about noon time, while I was passing near the house of Haji deceased and Noor Muhammad P. W. both of them out came of their juhghl armed with sofas and picked up a row with me over the beating of MsI. Anwar. Haji deceased attacked me with his dang but I stepped aside and the dang did not hit me. Ali Murad my brother and Ramzan my son were working in the fields nearby, who were attracted to the spot. Ramzan accused was working with a vehola at that time, and it remained with him when he came to the spot. Both of them tried to intermediate when Haji deceased and Noor Muhammad P. W. attacked them with their respective dangs causing them injuries. Ramzan used the vehola in exercise of his right of private defence of person. Both Haji and Noor Muhammad were also injured. As Haji died later on, I have been falsely roped in.
Q.--Have you anything else to say ?
A.--I had no motive against the deceased or Noor Muhammad P. W., who are my near relatives. All happened at the spur of moment and the complainant party took the initiative. Rahim, Bakhsh and Ghulam Muhammad Constables were prosecuted by Muhammad Shaft Balachani and I appeared as a P. W. against the said constable. The Local police was annoyed with me and they have also brought me in for no fault of mine. I am innocent.
Q.--Will you produce defence ?
A.--I only tender a certified copy of my statement which I made as P. W. in the above-mentioned "complaint *fded by MuhammadjShafiJas Exb. D. P."
Ali Murad and Ramzan appellant supported the version given by Abdul Latif, appellant. No evidence was produced in defence except a copy of the statement made by Abdul Latif appellant in an earlier criminal case. The learned triaLJudge held that, "there was no element of previous enmity between the parties, rather they were tied in the bonds of close relationship. The occurrence took place at the spur of moment preceded by a sudden quarrel over the incident of beating given by Abdul Latif accused to his wife, who happened to be the sister of the complainant and the deceased. In this case, it also cannot be said that the accused acted in cruel or unusual manner.
Latif accused inflicted only one blow to the deceased which unfortunately proved fatal and resulted in his death latter". In this view of the matter the learned Sessions Judge felt that the case fell under section 304, Part II, P. P. C. probably because of lack of intention. Curiously enough he thought that, in these circumstances the appellants were also entitled to the benefit of Exception IV of section 300, P. P. C. according to which finding the conviction should have been under section 304, Part I, P. P. C. However, according to my finding the appellants are entitled to acquittal, therefore, there is no need to discuss any further the question as to which part of section 304, P. P.
C. should have been applied by the learned Sessions Judge.
6. The fight between the two parties is not denied. One view of the matter could be, that it was a sudden fight on a sudden quarrel between the two parties, who were related to each other. On a close scrutiny of the evidence I find that in this case a reasonable possibility cannot be excluded that the complainant party committed deliberate aggression and the appellants acted in exercise of right of private defence. The sister of Noor Muhammad P. W. having been beaten by Latif appellant on the day previous to the occurrence, they would have nursed a grudge against their brother-in-law. It is in evidence that two appellants were found to have been injured. Therefore, it is legitimate to presume that Noor Muhammad and/or Haji deceased had some weapons with them.
It is in prosecution evidence that Abdul Latif appellant passed near the deceased. In these circumstances, the deceased and Noor Muhammad P. W.. having a motive against Abdul Latif appellant could be expected to remonstrate with him and also to attack him. Therefore, the claim of Abdul Latif appellant that it did happen so is neither unnatural nor improper.
7. The next question arises whether there is any support in the prosecution evidence to the plea of the appellants, that the attack was opened by the complainant party. The answer to this question is in the affirmative. Before dealing with this question, it is necessary to mention that the three outside witnesses, namely; Qalandar Bukhsh, P. W. 6, Muhammad Bakhsh P. W. 7 and Muhammad Bakhsh, P. W. 8, according to the admissions by P. W. 6 in his cross-examination, cannot be consi - dered as entirely independent. They have some grudge against Latif. It is also admitted that independent witnesses, about twenty, must hove seen the occurrence, but none of them has been produced by the prosecution. Be that as it may, Qalandar Bakhsh P. W. made very important and significant admission in his cross- examination, due importance to which has not been attacked by the learned trial Judge. He stated thus :-- "So many persons were working at the threshing floor at that time. They might be 20 in number. All of us rushed to the spot on hearing the alarm. Haji was the first who received injury at the hands of the accused. Thereafter Noor Muhammad P. W. attacked Ali Murad accused. When we were on our way to the spot from the threshing floor we had seen Hail deceased aiming a blow at Latif accused.
The blow however got missed. It is a fact that Haji deceased and Noor Muhammad P. Ws, were armed with sticks."
He in answer to a Court Question stated, that the occurrence took place in the land which is under joint cultivation of both the parties. Muhammad Bakhsh P. W. 7 made the following statement in his cross-examination :-- " When / heard the alarm I saw LaUf accused running to the spot. That alarm was being raised by Ali Murad and Ramzan accused and Haji deceased and Noor Muhammad P. W. They were already fighting when Latif accused reached there. Haji had no stick in his hand nor did he attack the accused. . . . When we reached the spot Noor Muhammad P. W. had a stick in the hand"
The following inferences can legitimately be drawn from the above quoted statements of the two witnesses
(a) That there is no evidence, except the statement of Noor Muhammad, as to what happened immediately before the blows were inflicted.
(b) That both of them have contradicted, on material parti culars, the version given by Noor Muhammad P. W.
(c) That Noor Muhammad P. W. was armed with a lathi. According to Qalandar Bakhsh P. W. Haji deceased had also a lathi with him.
(d) That according to Qalandar Bakhsh P. W. the attack was opened by Haji P. W. aiming a blow with lathi at Latif appellant but it missed.
8. I have no reason to suspect that these two witnesses made the admissions in favour of the appellants due to any motive. At least, there is no indication in their statements, nor were they declared hostile by the prosecution. There is no reason to dis believe the statement made by Qalandar Bakhsh in his cross- examination, which clearly shows that the deceased and Noor Muhammad P. W. were armed with sticks and they attacked Latif appellant. As the residential huts of the appellants are not far away from the place of occurrence, therefore, it appears that on seeing Latif appellant being attacked by the complainant party, Ali Murad and Ramzan appellants rushed to the spot to rescue him and it is in these circumstances that Haji was given one blow and two blows were given to Noor Muhammad. I, therefore, hold that the version given by Latif appellant has a sufficient support from the prosecution evidence and it is, therefore, reasonably possible that the appellants acted in exercise of right of private defence. There can be no controversy over the question whether in exercise of right of private defence the appellants exceeded the same. Only one blow, on the head, was given to Haji deceased. There are only two simple injuries on Noor Muhammad P. W. On the other hand there are two simple injuries on the vital parts of body of Ali Murad and Ramzan appellants. It is in evidence that both Haji and Noor Muhammad were armed with sticks. It is also in evidence that Haji used his stick ineffectively, but Noor Muhammad used his weapon effectively. In these circumstances, it cannot, at all, be said that the appellant party did not apprehend any grievous hurt at the hands of the complainant party. It is, therefore, held that they did not exceed the right of private defence.
9. As a result of the above findings I have come to the conclusion that the prosecution has failed to prove the case against the accused appellants beyond reasonable doubt and that n reason able possibility cannot be excluded that they legitimately acted in the exercise of right of private defence. Therefore, accepting their appeal, l set aside their convictions and sentences and acquit them. .